[CCWG-ACCT] Minority statements inclusion in report
David Post
david.g.post at gmail.com
Tue Dec 1 12:41:13 UTC 2015
But in all of this discussion, nobody has
answered the question I asked several times and
will ask again: if the "grandfathering" of the
existing agreements does NOT mean what I think it
could mean - a way for ICANN to assert that we
are authorizing it to control, through
registry-registrar and registrar-registrant
contracts, the power to revoke domains based upon
conduct or content in a manner inconsistent with
the Mission Statement limitations - WHAT DOES IT
MEAN? Why has that language been included in the
Report, and what is it intended to accomplish??
David
At 10:10 PM 11/30/2015, Silver, Bradley wrote:
>I disagree completely that the grandfathering of
>the provisions of the RAA and RA would
>automatically also grandfather any action that
>ICANN might take to enforce such agreements.
>ICANN's mission is defined first and foremost in
>the positive - and the bylaws begin from the
>proposition that anything ICANN does must be in
>conformity with that. The existing language says
>as much. There is a difference between
>provisions relating to illegal activity, and the
>regulation of content, but given your motivation
>to accomplish "a belated overturning of an abuse
>of ICANN's power", I don't think I can convince you of that distinction.
>
>________________________________________
>From: David Post [david.g.post at gmail.com]
>Sent: Monday, November 30, 2015 7:04 PM
>To: Silver, Bradley
>Cc: Burr, Becky; Thomas Rickert; Accountability Cross Community
>Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
>
>At 06:03 PM 11/30/2015, Silver, Bradley wrote:
>David,
>
>I am having some trouble understanding your
>examples below. Is your concern with the
>grandfathering of the RAA that it would give
>ICANN total freedom in deciding how to respond
>to enforcing provisions like 3.18 even such
>enforcement was clearly not consistent with its stated mission?
>
>Yes, that is a very, very serious concern. I
>don't know if I'd say it gives ICANN "total
>freedom", but close to it. If we're
>grandfathering in the agreements, then ICANN's
>actions to enforce the terms of the agreements
>could be seen as having been "grandfathered in"
>as well, and - as Becky's defamation example,
>and my fraud example, show - that would
>encompass many things that we would all agree (I
>think) are OUTSIDE the Mission.
>
> Or do you believe that to the extent any
> enforcement by ICANN of provisions like 3.18
> that touch on illegal activity that implicates
> “content†would take such a provision
> outside the mission?  If it’s the latter,
> then it appears you are attempting to achieve a
> retrospective amendment of the RA and RAA by
> redeffining “illegal activity†or
> “activity contrary to applicable law†to
> specifically exclude any activity which relates
> to the content associated with the Registered Name. Â Â
>
>Yes, I believe this as well. I thought we had
>widespread agreement on that. To the extent
>enforcement by ICANN of provisions like 3.18
>touch on illegal activity that implicates
>content is outside the mission. The Proposal
>clearly says: "ICANN’s Mission does not include
>the regulation of services that use the Domain
>Name System or the regulation of the content
>these services carry or provide." If
>enforcement of the the provision (again, like
>the defamation/fraud examples) touches on
>"illegal activity that implicates or relates to
>content, I do not believe that ICANN can impose
>obligations (directly or indirectly) on domain
>name holders with respect to that content. The
>RAA ad the RA appear to allow them to do that -
>which is why we need to clarify that they're not "grandfathered" in.
>
>It's funny, because a few hours ago you wrote:
>
>BS: I cannot imagine how anyone could force
>ICANN to interpret and enforce 3.18 or any other
>provision in a manner that doesnt comport with
>ICANN’s mission, particularly since we have
>language that says: ICANN shall act strictly in
>accordance with, and only as reasonably appropriate to achieve its Mission
>
>You couldn't imagine doing that - but that's
>exactly what you're now, no? You seem to be
>saying that ICANN may, through provisions like
>3.18, deprive name holders of their registered
>names if their illegal activity implicates
>content - even though we have language that
>says, clearly (I thought), that ICANN may not regulate content.
>
>This is precisely what I am concerned with, and
>what I would hope we're all concerned
>with: Using the existence of the
>(grandfathered) RA/RAA to allow ICANN to
>regulate content. You are convincing me that
>this is what you intend with the "grandfather"
>language. If I'm wrong about that, I'd be
>interested to know how I'm wrong and, as I asked
>earlier, what you think the "grandfather" language accomplishes.
>
>I don't think I'm proposing a "retrospective
>amendment" of the RA and the RAA - more like a
>belated overturning of an abuse of ICANN's monopoly power.
>
>I believe we need to insist on a Mission
>Statement that would negate any use of ICANN's
>monopoly power to impose an obligation on
>registrars to revoke domains based on
>allegations of illegal content. Far from
>persuading me that my reading of the grandfather
>in" language is "absurd," you are persuading me
>that it is precisely what you (ad perhaps
>others) have in mind - which illustrates the need for clarification.
>
>David
>
>From:
>accountability-cross-community-bounces at icann.org
>[
>mailto:accountability-cross-community-bounces at icann.org]
>On Behalf Of David Post
>Sent: Monday, November 30, 2015 5:30 PM
>To: Burr, Becky
>Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas
>Rickert; Accountability Cross Community
>Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
>
>At 01:55 PM 11/30/2015, Burr, Becky wrote:
>
>First, we discussed this on several calls (3 or 4), including the last.
>Second, on a more substantive note, it is
>completely absurd to suggest that grandfathering
>the language of existing contracts permits ICANN
>to enforce any contract term in any way it likes
>and to claim the protection of the picket fence
>forever going forward. Simply put, the drafters
>are instructed to ensure that the provisions of
>existing contracts are enforceable by their
>terms. As I said on this very topic recently:
>
>Beyond that, the language of 3.18 in question
>imposes obligations on registrars maintain ann
>abuse point of contact, invesstigate allegations
>regarding illegal activities, take appropriate
>action, so I don̢۪t think that amounounts to
>regulating registrants. I also agree that there
>are situations in which illegal activity could
>impact the stability and security of the
>Internetâ€ââ„¢s unique identifiers (e.g.,
>particularly involving malicious DNS exploits,
>etc.), so the provision seems to me to be
>appropriate in furtherance of ICANN’™s Mission.
>
>The problem, of course, is that not all illegal
>activity threatens the stability and security of
>the DNS; behavior that is illegal in some
>jurisdictions is not illegal in all
>jurisdictions; and the legality/illegality of a
>particular activity is generally a determination
>left to sovereigns or courts. So, what
>constitutes an “ approropriate responseâ€Â
>is going to vary from case to case.
>Theoretically, ICANN could choose to enforce the
>requirement in a manner that exceeded the scope
>of its authority, e.g., it could begin to say
>that registrars who do not suspend registrations
>in response to allegations that an underlying
>site is defamatory are in breach. But I think
>3.18 itself is a legitimate contract provision
>that ICANN should be able to enforce.
>
>But that's the problem, right there. You say
>that if ICANN "exceeds the scope of its
>authority" if it "begins to say that registrars
>who do not suspend registrations in response to
>allegations that an underlying site is defamatory are in breach."
>
>But why is it so obvious that this exceeds the
>scope of its authority? You will say: because
>we have said elsewhere that ICANN shall not
>regulate content, and this regulates content.
>
>But it is not far-fetched for someone to suggest
>that the "grandfathering" language modifies
>that, and was included precisely to make it
>clear that enforcing the provisions of existing
>agreements is WITHIN ICANN's authority. Under
>existing agreements, Registrars are already
>obligated to provide "consequences ... including
>suspension of domain name registrations" for
>"activities contrary to applicable
>law." Defamation is an "activity contrary to
>applicable law." Suspending registrations in
>response to allegations that an underlying site
>is defamatory is thus within the scope of
>(existing) agreements. If those agreements are
>grandfathered in, it looks to me like we're
>saying that when ICANN acts as it is authorized
>to do within the existing agreements, it is
>acting within the scope of its authority.
>
>David
>
>
>
>
>
>
>J. Beckwith Burr
>Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
>1775 Pennsylvania Avenue NW, Washington D.C. 20006
>Office: +1.202.533.2932 Mobile: +1.202.352.6367
>/ neustar.biz<http://www.neustar.biz>
>
>From: David Post <david.g.post at gmail.com<mailto:david.g.post at gmail.com> >
>Date: Monday, November 30, 2015 at 1:32 PM
>To: Accountability Community <
>accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
>Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" <
>NCSG-DISCUSS at LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>>,
>Thomas Rickert
><thomas at rickert.net<mailto:thomas at rickert.net>>,
>Accountability Community <
>accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
>Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
>
>
>The current Proposal (Annex 5 para 21) states in
>a "Note": "For the avoidance of uncertainty,
>the language of existing registry agreements and
>registrar accreditation agreements should be grandfathered."
>
>I don't believe any of the previous circulated
>drafts contained this language, and in my
>opinion it represents a very serious, and very
>substantial, step backwards in this process.
>
>To begin with, it is not clear what
>"grandfathering" these agreements mean. One
>possible implication is that everything within
>the existing agreements is within ICANN's
>Mission - or to put it differently, that the
>language of the Mission Statement should be
>interpreted in a manner such that all provisions
>of the existing agreements are inside the
>"picket fence" of ICANN's enumerated powers. The
>opposite implication is possible, too - that
>there are elements of the existing agreements
>that are NOT within the Mission, but which are
>nonetheless being "grandfathered" in so that
>they will not be invalidated in the future
>(notwithstanding their inconsistency with the Mission).
>
>I believe that the former interpretation may be
>the one that is intended - and I strongly
>disagree with that, and strongly dissent. The
>existing agreements contain a number of
>provisions that are outside the scope of ICANN's
>powers as we have defined it in the Mission
>Statement. One most prominent example: In
>Specification 1 of the new gTLD Registry
>Agreement, Registry operators agree to a set of
>mandatory "public interest commitments" - PICs -
>and to adhere to "any remedies ICANN imposes
>(which may include any reasonable remedy,
>including for the avoidance of doubt, the
>termination of the Registry Agreement pursuant
>to Section 4.3(e) of the Agreement) following a
>determination by any PICDRP panel and to be bound by any such determination."
>
>Among the mandatory PICs, the Registry operator
>must "include a provision in its
>Registry-Registrar Agreement that requires
>Registrars to include in their Registration
>Agreements a provision prohibiting Registered
>Name Holders from ... engaging in activity
>contrary to applicable law, and providing
>(consistent with applicable law and any related
>procedures) consequences for such activities
>including suspension of the domain name."
>
>Prohibiting domain name holders from "engaging
>in activity contrary to applicable law" is NOT
>within ICANN's scope as defined in the Mission
>Statement. It is neither a matter "for which
>uniform or coordinated resolution is reasonably
>necessary to facilitate the openness,
>interoperability, resilience, security and/or
>stability of the DNS," nor was it "developed
>through a bottom-up, consensus-based
>multi-stakeholder process and designed to ensure
>the stable and secure operation of the Internet̢۪s uniqueque names systems."
>
>ICANN should not have the power to revoke, or to
>impose on others the requirement that they
>revoke, anyone's continued use of a domain name
>because they have "engaged in activity contrary
>to applicable law." Such a provision would
>appear to allow ICANN to do what is, elsewhere,
>flatly prohibited: to impose regulations on
>content. Activity contrary to applicable law
>includes activity that (a) violates consumer
>protection law, (b) infringes copyright, (c)
>violates anti-fraud laws, (d) infringes
>trademarks, (e) violates relevant banking or
>securities laws, etc. etc. etc. At best, this
>provision is flatly inconsistent with the
>prohibition against regulating content. At
>worst, it can be interpreted to provide an
>"exception" to that prohibition - an exception
>that will swallow up the prohibition in its entirety.
>
>David
>
>At 10:53 AM 11/30/2015, Mueller, Milton L wrote:
>
>FWIW, Robin’s dissent nt is fully in line
>with th the official comments submitted by the
>Noncommercial Stakeholders Group during the last public comment period.
>--MM
>
>From:
>accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>
>[
>mailto:accountability-cross-community-bounces at icann.org]
>On Behalf Of Robin Gross
>Sent: Sunday, November 29, 2015 6:41 PM
>To: Thomas Rickert
>Cc:
>accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
>Community
>Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
>
>Thanks, Thomas. See below.
>
>Dissenting Opinion of Member Robin Gross (GNSO-NSCG)
>
>The CCWG-Accountability make a number of helpful
>recommendations to improve organizational
>accountability at ICANN, however one aspect of
>the plan is deeply flawed: changing the role of
>ICANN's Governmental Advisory Committee (GAC)
>from purely an “advisoryâ€Â role to a
>†⬠“decision makingâ€Â
>role over fundamentaental matterers at ICANN,
>including its governance. Consequently the
>proposal marginalizes the role of Supporting
>Organizations (SO’s) compared to
>todaoday’s ICANN goveNN governance
>structure. p; The degree of governmental
>empowerment over ICANN resulting from the
>proposal’s cs community mechanhanism is
>dangerous to the success of the proposal‬™s
>political acceptance as well as to its
>ultultimatte impact on a free and open Internet.
>
>The creation of a community mechanism to hold
>ICANN accountable on key issues made a critical
>error by departing from the existing power
>balance between SO’™s and nd AC’s as
>determined by relative boardard
>appointments.ts. Instead, the proposed
>community mechanism elevates the AC’s
>relative to thethe SO’s compared wpared
>with today’s b¬â„¢s balance on ICANN's
>board of directors,rs, which does not currently
>provide a decision making role to GAC, and which
>retains the primacy of the Supporting
>Organizations on key decisions, particularly
>those within the SO’s mandate. The
>devaluing of tf tf the Supporting Organizations
>in ICANN’s key dy decisiosions was a common
>theme in both previous public comment periods,
>however the recommendations not only failed to
>address this widespread concern, but went even
>further in devaluing SO’s in the
>communitnity mechanism in the 3r 3rd
>report. The community mechanism failed to take
>into account the appropriate roles and
>responsibilities of the various SO’™s and
>AC’s, and the dangers angers inherent it in
>changing those roles with a “one sizeze
>fitsts allâ€Â approach to critical decision makingg.
>
>Additionally, I object to the proposed departure
>from ICANN’s typical 30-day pubpublublic
>comment period on the 3rd report for
>CCWG-Accountability. The 3rd report’s
>public commomment only allallows for 9 days of
>public comment after the language translations
>are scheduled to be published, which is far too
>short of a public comment period for a report of
>this significance and with so many important changes since previous drafts.
>
>Robin Gross
>
>On Nov 29, 2015, at 1:29 PM, Thomas Rickert
><thomas at rickert.net<mailto:thomas at rickert.net>> wrote:
>
>Dear Robin,
>as discussed during the last CCWG call, minority
>statements will be included in the report as
>appendices if and when they are received.
>
>Best,
>Thomas
>
>---
>rickert.net<https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Qv0jYqBGBpDcX5hfJBnWctfriZdKXCzPTTlEhjSanvQ&s=9_5YAupJwVm6qd9FYkcvB50XsN6XMpB3eFmtm-kYBKI&e=>
>
>Am 29.11.2015 um 21:37 schrieb Robin Gross
><robin at ipjustice.org<mailto:robin at ipjustice.org>>:
>Dear Co-Chairs,
>I have still not received a response to this
>request. What is the process for submitting
>minority statements? Please advise.
>Thanks,
>Robin
>
>
>On Nov 11, 2015, at 5:35 PM, Robin Gross
><robin at ipjustice.org<mailto:robin at ipjustice.org>> wrote:
>
>Dear Co-Chairs,
>
>Could you please advise on the proposed schedule
>and process for ensuring that minority
>statements will be included in the report [of the executive summary]?
>
>Thank you,
>Robin
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